Instalment drawing under article 32 of UCP 600

[August 2008]

UCP 290: 1974

Article: 36

If shipment by
instalments within
given periods is
stipulated and any
instalment is not
shipped within the
period allowed for that
instalment, the credit
ceases to be available
for that or any
subsequent instalments,
unless otherwise
specified in the credit.

UCP 400:1983

Article 45:

If Drawings and/or
shipment by instalments
within given period are
stipulated in the credit and
any instalment is not drawn
and /or shipped within the
period allowed for that
instalment, the credit ceases
to be available for that or
any subsequent instalments,
unless otherwise stipulated
in the credit.

UCP 500: 1993

Article 41:

If drawings and/or
shipments by instalments
within given periods are
stipulated in the Credit and
any instalment is not drawn
and/or shipped within the
period allowed for that
instalment, the Credit ceases
to be available for that and
any subsequent instalments,
unless otherwise stipulated
in the Credit.

UCP 600:2007

Article 32:If a drawing or shipment by
instalments within
given periods is
stipulated in the credit
and any instalment is
not drawn or shipped
within the period
allowed for that
instalment, the credit
ceases to be available
for that and any subsequent instalment.

Reason For changes:

From UCP 290 to UCP 400:

During the lifetime of UCP 290, although issuance of standby letters of credit was not
specifically mentioned in the text, it was “incorporated” by the ICC in the standby letter of
credit practice under via a banking commission opinion issued in March 1977. The first
reference to standby letters of credit within the framework of the UCP was found in UCP 400,
article 1, and subsequently carried forward to it successors.

UCP 400 Article 45 was amplified in its reference to "drawings" because the revision
also incorporated "standby credits".

Case study of UCP 400, Case no. 140 uplifted a similar position,

Summery of Fact of Case study 140 on UCP 400:

The issuing bank disagreed for the following reasons:

a) UCP 290 Article 36 on shipment in instalments specifies that if one instalment is not
shipped within the prescribed period, the credit ceases to be available for further shipments.

The Article implies that this also goes for credits allowing drawing in instalments.

This view is supported by the identical UCP 400 Article 45, which states that if any
instalment is not drawn within the period allowed, the credit ceases to be available for that or
any subsequent instalments unless otherwise stipulated in the credit.

Answer

As the credit was issued under UCP 290; no note can be taken of changes in the 1983
Revision. In any case, UCP 400 Article 45 was amplified in its reference to "drawings"
because the revision also incorporated "standby credits".

Reason for Change between UCP 400 and UCP 500: No change has taken place

Reason for Change between UCP 500 and UCP 600: No factual change has taken place and
remain same exactly what its predecessor was, except: omitting “unless otherwise stipulated in
the Credit”.

From the above historical fact, we can reach in a conclusion that addition of the word
“Drawing” is nothing but a result of incorporation of standby letter of credit into the text
of UCP.

Impact of Drawing in commercial letter of credit practice:

Following the above we try to analyze the following situation to determine whether
subsequent presentations [although complying] cease to available due to first presentation
is not made within stipulated timeframe of the credit, i.e. late presentation:

Credit stipulated:

A credit stipulated the following shipment schedule:

1. 1st Shipment must be made within 1st July’08 to 10th July ’08 .
2. 2nd shipment must be made within 11th July ’08 to 20th July ’08
3. Final shipment must be made within 21st July ’08 to 30th July ’08.

Credit available: at the counter of issuing bank by sight payment.Additional condition: Document must be presented within 15 days from the date of

Shipment.

Shipment effect by the beneficiary: 1st shipment 5th July 08
2nd shipment 15th July 08 and

3rd shipment 25th July 08.

Presentation of document:

Beneficiary presented document under the following manner:

Document presented for 1st shipment at the counter of issuing bank as on 26th July

08 [ late presentation]

Document presented for 2nd shipment at the counter of issuing bank as on 27th

July 08

Document presented for 3rd shipment at the counter of issuing bank as on 30th July

From the history of UCP 400 to UCP 600, we come to know that the “Irrevocable”
nature of the letter of credit has gradually been upgraded. The current version of UCP
i.e.. the UCP 600 is the latest improvement in the field of the “Principle of
Irrevocability.” The following sub-articles signify the above development.

According to article 2 Definition of UCP 600:

“Credit means any arrangement, however named or described, that is irrevocable and
thereby constitutes a definite undertaking of the issuing bank to honour a complying
presentation”

This “Irrevocable” position of the letter of credit is also emphasized by incorporating a
principle at article 3, Interpretation:

“A credit is irrevocable even if there is no indication to that effect”

The spirit of the irrevocable nature of letter of credit has also apparent in sub article 10(a)
of UCP 600:

“Except as otherwise provided by article 38, a credit can neither be amended nor
cancelled without the agreement of the issuing bank, the confirming bank(if any) and the
beneficiary”

Since the “Principle of Irrevocability” is the heart of each and every letter of credit
transaction under the framework of UCP 600, all parties [especially the issuing bank and
the nominated bank acting on its nomination or the confirming bank], engaging in a
particular letter of credit transaction must ensure that its role will not demolish this
principle.

Situational analysis of fact:

In order to analyze the stand of issuing bank regarding right or wrong, first of all, we
shall look into the options that issuing have under the framework of article 32 of UCP
600 for the above cases.

Basically the issuing bank’s has two options, such as:

This credit will be ceased to be available due to late presentation on the first
presentation.

This credit will be available for subsequent presentation despite late
presentation of first shipment’s document.

First we analyze option 1 i.e. whether or not it is conflicting with the “Principle of
Irrevocability”

First of all, we have to recognize that if a credit followed by several separate
presentations, each presentation will be examined separately in order to determine if
presentation is complying. There is no scope to mix up several presentations under a
single letter of credit transaction. ICC official opinions has also reflected the same
position such for example “Official Opinion R332 - 1998/99”. The analysis/conclusion
from that opinion reads:

The fact that a bank may have previously accepted discrepant documents, with or without
an applicant waiver, does not bind that bank to accepting a similar discrepancy(ies) on
any future drawing(s) unless local law states otherwise.

One main reason behind this conclusion it to maintain and protect the “Principle of
Irrevocability”. Sub article 7(a) of UCP 600 also stipulates the same position:

“Provided that the stipulated documents are presented to the nominated bank or to the
issuing bank and that they constitute a complying presentation, the issuing bank must
honour......”

The above sub article reveals that the issuing bank’s determination of whether or not the
presentation is complying must be solely based on stipulated presented document and
under no circumstances that the presentation is linked to prior presentations of a same
letter of credit transaction [which may or may not be discrepant].

When the issuing bank decided that the presentation in complying, it must perform its
role mentioned in sub article 15(a) of UCP 600:

“When an issuing bank determines that a presentation is complying, it must honour.”

Conclusion:

Consequently, taking option 1, that is ceasing availability of drawing for subsequent
complying presentation due to late presentation of first shipment’s document is not only
damaging the purity of “Principle of irrevocability” but also pushing other basic pillars
of the UCP into venerable position based on which the UCP has been developed and
carried forwarded over a period of time.

Finally, from the above analysis, we can infer that Issuing bank should not reject
subsequent complying presentation on the plea that the first shipment’s document is
presented after stipulated timeframe mentioned on the credit.